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Monday, November 26, 2012

Amarillo appeals court: 'A cell phone is not a pair of pants'

The Seventh Court of Appeals in Amarillo in a recent opinion (pdf) addressed the question, "May an officer conduct a warrantless search of the contents or stored data in a cell phone when its owner was required to relinquish possession of the phone as part of the booking or jailing process?" They said "No," at least barring "exigent circumstances or other recognized exceptions to the warrant requirement." Here's how attorney-blogger Paul Kennedy described the gist of the ruling:

In State v. Granville,
No. 07-11-0415-CR (Tex.App.-- Amarillo 2012), the Amarillo Court of
Appeals held that the warrantless search of a cell phone by a "stranger
to an arrest" violates the Fourth Amendment. In its opinion, the court
explained, in detail, why a cell phone is not a pair of pants.

The court explained that a cell phone is more like a computer and that
the information contained within the memory of a cell phone provides a
glimpse into the private life of the owner and that the use of
passwords, encrypted programs and other security measures gave the user a
reasonable expectation of privacy.

The court also took note that Mr. Granville's phone had to be turned on
by the officer who decided he needed to snoop around and look at the
photos stored on the phone. The fact that the phone had been turned off
was another indication that Mr. Granville had a reasonable expectation
of privacy.

Finally the court addressed the issue of whether a pre-trial detainee
(arrestee) has a privacy interest in his cell phone. Mr. Granville was
arrested for a Class C misdemeanor (for those outside the Lone Star
State, that is the equivalent of a traffic ticket). He was not going to
be held in custody for long and he certainly wasn't the type of person
that the ordinary citizen would think should be locked up. The court
stated that, because a pre-trial detainee has the opportunity to post
bond and get released that he has a greater privacy interest in his
personal property than an inmate.

I leave y'all with this quote from the opinion:

While assaults upon the Fourth Amendment
and article I, § 9 of the United States and Texas Constitutions
regularly occur, the one rebuffed by the trial court here is sustained. A
cell phone is not a pair of pants.

NOTE: An attentive commenter alerted me to the fact that the Court of Criminal Appeals granted cert on this case (i.e., they agreed to the prosecution's request that they hear it), so stay tuned. Texas' high criminal court could yet perpetuate another "assaul[t] on the Fourth Amendment," as the Amarillo court put it, and decide that a cell phone is, in fact, a pair of pants.

What Fourth Amendment? The courts have carved so many exceptions that the old description of it being like Swiss cheese is no longer apt. It is more like a window screen consisting of three strands of wire -- gives an appearance but does not stop the mosquito bite or wasp sting.

The Court of Criminal Appeals may review decisions of the court of appeals upon a petition for review from the state or a defencant, not upon a petition or application for certiori. See Art. 44.45(b)(1), C.C.P.

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